Kaplan v. New York City Loft Board

159 A.D.2d 439

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 1990
• Status: Published

Opinion

in this CPLR article 78 proceeding, transferred to this court by order of the Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about June 29, 1989, challenging a determination by respondent Loft Board, dated October 6, 1988, which on reconsideration reversed an earlier determination and rejected a tenant’s application for coverage under the Loft Conversion Law (Multiple Dwelling Law art 7-C), unanimously denied, the administrative determination is confirmed and this proceeding is dismissed, without costs.

Petitioner failed to sustain his burden of establishing two other residential tenancies besides his own during the "window period” (Multiple Dwelling Law § 281) so as to qualify for protection under the Loft Conversion Law. Petitioner’s application was actually in succession to an earlier application by two other tenants, who subsequently withdrew their applications with an acknowledgement that they had not in fact been residential tenants during the "window period”. To the extent that the testimony of these two former applicants might have been favorable to petitioner, he must bear the consequences of his failure to enforce his subpoenas for their appearance, especially in light of the obviously crucial nature of such testimony to his application and the indulgence of the administrative agency in giving petitioner any additional time he needed to produce those witnesses. Petitioner received all manner of due process, and contrary to his claim that he did not, the claim was not made at the administrative level. Under the circumstances he was not entitled to dismissal of the administrative proceeding "without prejudice.” Concur— Sullivan, J. P., Carro, Rosenberger and Smith, JJ.